Men with a multiplicity of transactions pressing on them, and moving in a narrow circle, and meeting each other daily, desire to write little, and leave unwritten what they take for granted in every contract. In spite of the lamentations of judges, they will continue to do so; and in a vast majority of cases, of which courts of law hear nothing, they do so without loss or inconvenience; and upon the whole they find this mode of dealing advantageous, even at the risk of occasional litigation. It is the business of courts reasonably so to shape their rules of evidence as to make them suitable to the habits of mankind, and such as are not likely to exclude the actual facts. To exclude the usage is to exclude a material term of the contract, and must lead to an unjust decision.

We ought not hastily to accuse him [David Hume] of wilful misrepresentation or suppression, for he was utterly unacquainted with English juridical writers. Gibbon entered on a laborious study of the Roman civil law to fit him to write his DECLINE AND FALL; but Hume never had the slightest insight into our jurisprudence, and his work, however admirable as a literary composition, is a very defective performance as a history. Of the supposed distinction [made by Hume in his History of England, reign of James I.] between a statute and a proclamationthat the former was of perpetual obligation till repealed, and the latter lost its force on a demise of the crownI do not find a trace in any of our books.

In the belief that Coke was humbled as effectually well as the other Judges, the following question was put to them: In a case where the King believes his prerogative or interest concerned, and requires the Judges to attend him for their advice, ought they not to stay proceedings till his Majesty has consulted them? All the Judges except Coke: Yes! Yes! Yes! Coke, C. J.: WHEN THE CASE HAPPENS, I SHALL DO THAT WHICH SHALL BE FIT FOR A JUDGE TO DO.

I have only further to express my satisfaction in thinking that a heavy weight is now to be removed from my conscience. So essential did I consider an Index to be to every book, that I proposed to bring a bill into Parliament to deprive an author who publishes a book without an Index of the privilege of copyright; and moreover to subject him for his offence to a pecuniary penalty. Yet, from difficulties started by my printers, my own books have hitherto been without an Index. But I am happy to announce that a learned friend at the bar, on whose accuracy I can place entire reliance, has kindly prepared a copious Index, which will be appended to this work, and another for the new stereotype edition of the Lives of the Chancellors.

When we censure those who have gone before us for inefficiency in law reform, we should recollect that we ourselves have never solved the problem of recompensing professional labour without the test of the length of law proceedings, and that till this is done all attempts to check prolixity will be vain. [Note:] A striking illustration of the brevity which lawyers could attain, there being no interest to be verbose, is the judgment of death upon a felon, which, as there was no fee according to the number of words contained in it, was thus recorded, SUS PER COL.

The venerable sages who apprehended such multiplied evils from altering the practice [of not allowing counsel to prisoners in capital cases] must have been greatly relieved by finding that their objections have proved as unfounded as those which were urged against the abolition of peine forte et dure; and the alarming innovation, so long resisted, of allowing witnesses for the prisoner to be examined under the sanction of an oath.

He [Lord-Commissioner Whitelocke, in a speech in parliament, in 1649] showed that the silence of counsellors on capital cases was the fault of the law, which kept them silent; and he ingenuously confessed that he could not answer that objection, that a man, for a trespass to the value of sixpence, may have a counsellor to plead for him; but that where life and posterity were concerned, he was debarred of that privilege. What was said in vindication or excuse of that customthat the Judges were counsel for the prisonerhad no weight in it; for were they not to take the same care of all causes that should be tried before them? A reform of that defect he allowed would be just. But it was nearly two hundred years before that reform came, and I am ashamed to say it was to the last opposed by almost all the Judges.

I delight to think that my special pleading father [William Tidd], now turned of eighty, is still alive, and in the full enjoyment of his faculties. He lived to see four sons sitting together in the House of Lords,Lord Lyndhurst, Lord Denman, Lord Cottenham, and Lord Campbell. To the unspeakable advantage of having been three years his pupil I chiefly ascribe my success at the bar. I have great pride in recording that when, at the end of my first year, he discovered that it would not be quite convenient for me to give him a second fee of one hundred guineas, he not only refused to take a second, but insisted on returning me the first. Of all the lawyers I have ever known, he has the finest analytical head; and if he had devoted himself to science I am sure that he would have earned great fame as a discoverer. His disposition and his manners have made him universally beloved.

Of all the departments of literature, jurisprudence is the one in which the English had least excelled. Their treatises of highest authority were a mere jumble, without regard to arrangement or diction. Now, for the first time, appeared among us a writer who rivalled the best productions of the French and German jurists. He [Charles Yorke] was not only an admirer, but a correspondent, of Montesquieu; and he had caught a great share of the Presidents precision, and of his animation. In this treatise [Some Considerations on the Laws of Forfeiture for High Treason] he logically lays down his positions, and enforces them in a strain of close reasoning,without pedantic divisions, observing lucid order;and drawing from the history and legislation of other countries the most apposite illustrations of his arguments.

I am only aware of one objection that has been seriously urged against me as a writer,and this I confess I have not at all attempted to correct,that, forgetting the dignity of history, my style is sometimes too familiar and colloquial. If I err here, it is on principle and by design. The felicity of my subject consists in the great variety of topics which it embraces. My endeavour has been to treat them all appropriately. If in analyzing the philosophy of Bacon, or expounding the judgments of Hardwicke, or drawing the character of Clarendon, I have forgotten the gravity and severity of diction suitable to the ideas to be expressed, I acknowledge myself liable to the severest censure; but in my opinion the skilful biographer when he has to narrate a ludicrous incident will rather try to imitate the phrases of Mercutio than of Ancient Pistol

projicit ampullas et sesquipedalia verba.

I cannot understand why, in recording a jest in print, an author should be debarred from using the very language which he might with propriety adopt if he were telling it in good society by word of mouth.

I am grieved to hear that the reading of Coke upon Littleton is going out of fashion among law students. When I was commencing my legal curriculum, I was told this anecdote:A young student asked Sir Vicary Gibbs how he should learn his profession. Sir Vicary. Read Coke upon Littleton. Student. I have read Coke upon Littleton. Sir Vicary. Read Coke upon Littleton over again. Student. I have read it twice over. Sir Vicary. Thrice? Student. Yes, three times over, very carefully. Sir Vicary. You may now sit down and make an abstract of it.

If my opinion is of any value, I would heartily join in the same advice. The book contains much that is obsolete, and much that is altered by statutable enactment; but no man can thoroughly understand the law as it now is without knowing the changes it has undergone, and no man can be acquainted with its history without being familiar with the writings of Lord Coke. Nor is he by any means so dry and forbidding as is generally supposed. He is certainly unmethodical, but he is singularly perspicuous, he fixes the attention, his quaintness is often most amusing and he excites our admiration by the inexhaustible stores of erudition which, without any effort, he seems spontaneously to pour forth. Thus were our genuine lawyers trained. Lord Eldon read Coke upon Littleton once, twice, thrice, and made an abstract of the whole work as a useful exerciseobeying the wise injunction, Legere multumnon multa.

While fully aware of the impossibility of reducing the whole law of any civilized country into a written code in which might be found all that judges or legal practitioners can require for the due administration of justice, so that all other law-books might be dispensed with and burned, I was in hopes that the criminal law, from its simplicity and certainty, was a partial exception; but having sat for eleven days with one Chancellor and four ex-Chancellors, Cranworth, Lyndhurst, Brougham, Truro, and St. Leonards, upon the single title of homicide, I gave up the attempt in despair. We never could agree on a definition of murder or manslaughter. Brougham himself was particularly unhandy at this work, and justified the answer given by Maule, J., to the question whether the attempt could now be safely made:I think the attempt would now be particularly dangerous; for the scheme is impracticable, and there are some who believe that they could easily accomplish it.

I may perhaps be pardoned if I conclude this memoir with a valueless but sincere tribute of admiration and gratitude to Peter Leopold, the late Earl [Cowper] . From him I received kind and encouraging notice when I was poor and obscure; and his benevolent and exhilarating smile is one of the most delightful images in my memory of pleasures to return no more.